The Petitioner, a systems engineer, seeks second preference immigrant classification as a member of the professions holding an advanced degree, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not established that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. On appeal, the Petitioner asserts that he is eligible for a national interest waiver.
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal.
Law
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.
Section 203(b) ofthe Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -(A) In general. - Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the p. 2 sciences, arts, professions, or business are sought by an employer in the United States. (B) Waiver ofjob offer-
(i) National interest waiver. . . . [T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
In announcing this new framework. we vacated our prior precedent decision, Matter ofNew York State Department of Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
Dhanasar states that after a petitioner has p. 3 considered must, taken together, indicate that on balance, it would be beneficial to the United States The Director concluded that the Petitioner qualifies as a member of the professions holding an advanced degree. The remaining issue to be determined is whether the Petitioner has established that a waiver ofthe requirement ofajob offer, and thus a labor certification, would be in the national interest. For the reasons discussed below, we agree with the Director that the Petitioner has not sufficiently demonstrated that a waiver of the requirement of a job offer, and thus a labor certification, would be in the national interest under the Dhanasar analytical framework.
A. Substantial Merit and National Importance of the Proposed Endeavor
The first prong relates to substantial merit and national importance of the specific proposed endeavor. Dhanasar, 26 I&N Dec. at 889. The Director determined that the proposed endeavor has substantial merit, but he concluded that it does not have national importance.
On the Form ETA 750B submitted with the petition, the Petitioner indicated that he is currently pursuing a Ph.D. in systems engineering at the University of1 IOn the petition, he indicated that he intends to work as a postdoctoral fellow in the field of systems engineering. The Petitioner's statement submitted with the initial petition indicates that his future research plans include automating the information gathering practice to support the process of knowledge acquisition in the law and other domains, and building a comprehensive framework that provides U.S. bank regulators and the Federal Reserve with methods to design preventive and resolution policies for systemic risk.
With the petition, the Petitioner also submitted an email fro~ IPr1fessor and Chair ofthe Department of Systems and Information Engineering at the University oft_ _ _ offering the Petitioner employment as a postdoctoral fellow once he obtains his Ph.D. evidence (RFE), the Petitioner submitted a statement reiterating that he will pursue research as a Ph.D. candidate at the University o~ Iin the systems engineering department and work as a research assistant there. He stated that after he graduates from his Ph.D. program, he plans to accept a postdoctoral job offer fro~ I
The record also includes the Petitioner's statement that technology companies such as Google and Microsoft inquired about his work and suggested he apply for data scientist positions. The record indicates the Petitioner had done so. The Director stated in his notice ofintent to deny (NOID) and in his denial decision that while this information may indicate the Petitioner's proposed endeavor, that the record did not establish private employment would necessarily allow the Petitioner to pursue his proposed endeavors as described in his personal statements; and that it was not apparent that such employment As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for him to have a job offer from a specific employer. However, we will consider information about proposed employment to illustrate the capacity in which he tends to work in order to determine whether his proposed endeavor meets the requirements of the Dhanasar analytical framework. to waive the requirements of a job offer and thus of a labor certification.
Analysis
See Dhanasar, 26 I&N Dec. at 888-91 , for elaboration on these three prongs.
In response to the Director's request for p. 4 would be nationally important to the United States. In his denial decision, the Director determined that the evidence submitted does not support the Petitioner's claim that his proposed endeavor will have potential prospective impact, such as evidence that the endeavor:No broader implications shown
- will have broader implications, or national or global implications within a particular field;
- has significant potential to employ U.S. workers;
- will have substantial positive economic effects;
- will broadly enhance societal welfare; or
- will broadly enhance cultural or artistic enrichment.
On appeal, the Petitioner asserts that the Director mischaracterized the fust prong relating to national importance because he focused on the Petitioner's employment options rather than his proposed endeavor. The Petitioner states that "USCIS must evaluate whether the activity has substantial merit or national importance in isolation from the beneficiary." On appeal, the Petitioner further asserts that evidence of national importance was "amply evidenced in prior submissions," including: "evidence that poor systemic risk management has significantly harmed the United States in recent years, making superior mathematical decision-making models highly beneficial for the nation"; "evidence that freight transportation and supply chain logistics for delivery applications is in upheaval, making superior adaptive decision support systems highly beneficial for the nation"; and "evidence that data research occupies approximately one-third of the average lawyer's time, making superior information gathering frameworks highly beneficial to the nation." The Petitioner also states that he submitted evidence in response to the RFE that the United States would benefit from further research in his specialty, including his own statement.
In determining national importance, we focus on the "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we noted that "we look for broader implications" of the proposed endeavor and that "[a]n undertaking may have national importance for example, because it has national or even global implications within a particular field ." Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance." Id. at 890.
Director clearly articulated the proper factors to be considered in determining whether the Petitioner's proposed endeavor has national importance.
To evaluate whether the Petitioner's proposed endeavor satisfies the national importance requirement we look to evidence documenting the "potential prospective impact" of his work. The Petitioner's statements reflect his intention to work as a postdoctoral fellow in the field of systems engineering and to conduct research on the application of adaptive decision support systems and mathematical models to complex decision-making. As previously noted, he stated that his future research plans include two areas of focus:
- Leaming knowledge acquisition techniques in the law and other domains; and We noted that "an endeavor's merit may be established without immediate or quantifiable economic impact" and that "endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States." Id. at 889.
In his decision, the
- Systemic risk, including developing comprehensive measures of systemic risk under uncertainty; developing a mechanism design methodology for regulating financial systems; and developing privacy preserving methodology for financial institutions.
In support of his claims, the Petitioner submitted a letter from I Iwhich states that the Petitioner's work "is highly relevant to a number ofpressing issues facing the United States," including systemic risk management in the financial indust Further, a letter fromI I Professor of Computer Science at the Universit o and the Director the National Science Foundation's (NSF) systematic risk. The Petitioner also submitted a letter from I IManager of Corporate Development at I Idescribing the Petitioner's work in the areas of "systemic risk in the nation's financial infrastructure" and "accessibility across the corpus of legal opinions and decisions" as "areas of foundational importance to the nation."
Further, I l\lice President of Research at I Idescribed the Petitioner's work automating legal search activity and stated that his research is "a highly significant area of research for the United States." In an additional support letter,I IExecutive Director and Chief Technology Officer of the I Isaid the Petitioner's work in legal search technologies is "very beneficial to the legal search process of the United States." The record shows that the Petitioner's proposed endeavor stands to sufficiently extend beyond his research at the University ofl Ito impact the field of systems engineering more broadly at a level commensurate with national importance.
Thus, based on the totality of the evidence in the record, the Petitioner has demonstrated by a preponderance of the evidence that his proposed endeavor shows substantial merit and has national importance. Accordingly, the Petitioner satisfied the first prong of the Dhanasar analytical framework, and we withdraw the Director's determination on this issue.
B. Well Positioned to Advance the Proposed Endeavor
The second prong shifts the focus from the proposed endeavor to the Petitioner in order to determine whether he or she is well positioned to advance the proposed endeavor. Dhanasar, 26 l&N Dec. at 890. The record includes documentation of his curriculum vitae, academic credentials, personal statements, advisory opinions, recommendation letters, publications and citations, and funding sources. The Director concluded that the Petitioner has not established by a preponderance of the evidence that he is well positioned to advance the proposed endeavor. The Director noted in his decision that the Petitioner is engaged in ongoing research projects atl IHe detailed all of the testimonial letters in the record, which indicate that this research is valuable and suggests significant interest from industry. However, the Director stated that the record does not include primary evidence of such interest. Moreover, he indicated that the evidence does not show the Petitioner's research has been implemented commercially or otherwise impacted industry.Past record does not show influence or success
The Director also noted in his decision that the record demonstrates that the Petitioner has conducted and presented research as part of his graduate studies. He stated that this research has been accepted for publication, presentation, fonding, and academic credit and can be considered original research. However, he stated that not every individual who has performed original research can be considered well positioned to advance his proposed research. He noted that the Petitioner must establish his progress towards achieving the goals of the proposed research, record of success in similar efforts, or generation of interest among relevant parties supports that finding. The Director determined that the Petitioner has not shown that his research has been frequently cited by others or otherwise served as an impetus for progress in the field, such that it has affected industry.Citation record not persuasive He also detailed the advisory letters and other evidence in the record regarding the Petitioner's research and determined that it has not generated substantial positive discourse in the broader academic community, or that it otherwise constitutes a record of success or progress in the Petitioner's area of research. In sum, the Director determined that the evidence submitted does not support the Petitioner's statements that the Petitioner is well positioned to advance the proposed endeavor.
On appeal, the Petitioner assets that he has established his satisfaction of prong two according to the "exact same factors" as the Dhanasar petitioner. Specifically, he states that he is well positioned to advance the proposed endeavor based on his education, his research experience, the recommendations ofother experts, interest in his work by his peers, and the fonding ofhis work by government agencies. For the reasons discussed below, the record supports the Director's determination that the evidence is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed research under Dhanasar's second prong.
With regard to education, the petitioner in Dhanasar held multiple graduate degrees including "two master of science degrees, in mechanical engineering and applied physics, as well as a Ph.D. in engineering." Id. at 891. Here, the Petitioner held two masters degrees at the time of filing: one in mathematical modeling and methods in economics and finance froml I Iand one in industrial engineering froml IHe was in the process of obtaining his Ph.D. at the University o~ Iat the time of filing, but his Ph.D. had not yet been awarded. Thus, he has not established that his education is at the same level as the petitioner in Dhanasar. Further, while his education qualifies him as a member of the professions holding an advanced degree, the Petitioner's academic accomplishments by themselves do not demonstrate that he is well positioned to advance his proposed endeavor. We look to a variety of factors in determining whether a petitioner is well positioned to advance his proposed endeavor, and education is merely one factor among many that may contribute to such a finding.
On appeal, the Petitioner farther asserts that similar to the petitioner in Dhanasar, his substantial track record of research experience demonstrates that he is well positioned to advance the proposed endeavor. He cites his development of a mathematical model to solve the Iproblem; his creation af a I Itheory for the~U_n_i-te_d_S-ta_t_e_s_b_a_nk-in-g~ ~s-y-st_e_m_;_a_n_d_h_i~s development of a[ Isearch model. He additionally states that he has co-authored six book chapters and one conference paper detailing his results. However, as farther detailed below, he has not demonstrated how his research has been implemented commercially or otherwise impacted industries such as transportation, banking, or law, or how it otherwise represents a record of success or progress rendering him well positioned to advance his proposed endeavor. p. 7 discusses the Petitioner's article or his contributions from the 39 other references in the article. Similarly, in an article in Transportation Research Part E, the authors indicated the above-referenced chapter co-authored by the Petitioner itj Idiscusses direct and tour trips, and supports the statement that "[d]etermining a suitable location of the business center is considered one of the most essential steps in supply chain management."I I !Transportation Research Part El IThis excerpt, however, is similarly limited, and does not otherwise establish the significance of the Petitioner's role or research from the 53 other references in the article.
As it relates to his peer review activity, the Petitioner provided documentation evidencing that his paperentitled.__________________~ forthe2018ConferenceonEmpirical Legal Studies in Europe (CELSE) was peer-reviewed in advance of its presentation. The Petitioner, however, did not demonstrate that his participation in the peer review process represents a record of success in his field or that it is otherwise an indication that he is well positioned to advance his endeavor. Further, although presentation of the Petitioner's work indicates that he shared his original findings with others, he has not shown that the number of citations received by his published book chapters or the level of interest they generated is sufficient to demonstrate that he is well-positioned to advance his endeavor. eds., Springer 2009).
Further, on appeal, the Petitioner cites interest in his work by his peers. He states that his published work had accrued 28 citations by the time of filing and that numerous independent researchers had relied on his work to accomplish their own subsequent research endeavors. Several of his reference letters commented on his citation numbers. However, as noted by the Director in his decision, the Petitioner has not demonstrated that the number of citations received by his published book chapters reflect a level ofinterest in his work from relevant parties sufficient to meet Dhanasar's second prong.No interest from users, customers or investors Ofthe 28 citations, information from Google Scholar indicates that his highest cited work is one book Ientitled I Iwhich he co-authored with four This chapter has received 17 citations, with his remaining published chapters receiving chapter in I
I I
I"because it is one of the most accepted models in the literature."!
Ia researcher in industrial and systems engineering a~ IUniversity in Iran, stated the Petitioner'? formulation is well known and his research "was a foundational I
Additionally, the Petitioner asserts on appeal that his research has been recommended by several experts, and that advisory opinions from independent experts describe the value of his research and the ways in which his research has been implemented in subsequent research projects. record does not support the Petitioner's assertion. For example, as noted above, the record contains recommendation letters froml U ll Iandl 11 I stated that the Petitioner proposed a "novel risk control system based on a mechanism for I I ' and stated this "ongoing work is highly valuable." In addition,! I stated the Petitioner "has been successful in addressing the faults in the existing legal search process" as he "developed measurements for model performance and evaluated the results. . . showing that his model and search algorithms improved on and complemented human search activity." I I also stated that these projects may be commercialized. However, he did not offer examples of how the Petitioner's research have been implemented or utilized in the fields of finance or law, such as how his risk control system has been utilized in U.S. financial markets, or how his model and search algorithms have been incorporated into existing legal research platforms.
.___ _ _ ____.I stated the Petitioner has presented two of his major research projects td Iand the projects have received fonding. I Istated the Petitioner's constructed algorithms developed through research provide "a powerful tool for automated legal research but also helps to illuminate the ways in which various corpora of legal data are structured." Further, he noted that the Petitioner's work with regard to systematic risk is "consistent with the particular objectives and functions ofthe U.S. financial system and Federal Reserve, and it is designed to regulate risk without limiting growth." However, he did not offer examples ofhow the Petitioner's algorithms and research have affected the finance or legal industries or otherwise represent a level of success or progress rendering the Petitioner well positioned to advance his proposed endeavor.
.___ _ _ _ _.Uescribed the Petitioner's work automating legal search activity and stated the research is highly usefol and "easily extendable to enable automated searches ofother legal data."I I '------------'
.___ _ ____.I Assistant Professor at.___ _ _ _ _ _ _ _ _ _ _ _ _ __, in Iran, similarly stated that he has used the Petitioner's research and attested to the continued importance of the Petitioner's work in the field. However, the writers did not provide specific examples indicating that the Petitioner's research has affected their related industries, or otherwise represents a record of success or progress rendering him well positioned to advance his proposed endeavor.
Finally, on appeal, the Petitioner asserts that his research has been regularly fonded by government and industry, including NSF andl lwhich represents 23 industry partners. He states that this expert scientific analysis highlights the extent to which his research has served, and will continue to serve, the interests of these entities. The Petitioner submitted a letter from I I Innovation Mana in Director of statin the research project entitled I I L...---------....-------...,___,,------,.......1 was selected through a formal voting process for fonding of$10,000 b y ~ ---~ A~_~eport related to the project shows that M-L- was the principal investigator on the project, that the Petitioner was one of two researchers on it, and that it had an annual ro osed bud et of $40 000. Another re ort in the record related to a project entitled.__________________________, shows that W-S- was the principal investigator on the project, that the Petitioner was one of two researchers on it, and that it hadanannualproposedbudgetof$40,000. Thesereports,however,donotindicatethatthePetitioner was primarily responsible for securing the fonding for the research projects or that he was the only researcher listed on the projects. The reports list a primary investigator and the Beneficiary as one of the researchers, and the reports do not establish whether the Beneficiary played a significant role.
The Petitioner also provided documentation from the University o~ !concerning the awarding of itsl !Fellowship in Data Science to a 1 Iresearch proposal. The fellowship included a monetary award. Although a letter from the university's Vice President for Research indicates that the research proposal was solely the Petitioner's effort, email correspondence in the record indicates that the Petitioner was part of a team that was selected for participation the 10 fellowship program.
Rather, we examine the factors set forth in Dhanasar to determine whether, for instance, the individual's progress towards achieving the goals ofthe proposed research, record ofsuccess in similar efforts, or generation of interest among relevant parties supports such a finding. Id. at 890. The Petitioner, however, has not sufficiently demonstrated that his published and presented work has served as an impetus for progress in the systems engineering field or that it has generated substantial positive discourse in the identified industries of banking and law. Nor does the evidence otherwise show that his work constitutes a record of success or progress in advancing research relating to his fields of interest in systems engineering. As the record is insufficient to demonstrate that the Petitioner is well positioned to advance his proposed endeavor, he has not established that he satisfies the second prong ofthe Dhanasar framework. Accordingly, the Petitioner has not demonstrated eligibility for a national interest waiver.
C. Balancing Factors to Determine Waiver's Benefit to the United States
The Director also determined that the Petitioner has not established that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. However, as the Petitioner has not established that he is well positioned to advance his proposed endeavor as required by the second prong of the Dhanasar framework, he is not eligible for a national interest waiver and further discussion of the balancing factors under the third prong would serve no meaningful purpose. Thus, we decline to reach and hereby reserve the appellate arguments regarding this remaining issue. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
Conclusion
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we conclude that he has not demonstrated that he is eligible for or otherwise merits a national interest waiver as a matter of discretion. The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision.
ORDER: The appeal is dismissed.